Monday, August 25, 2008

This Is What Happens After Your Brain Goes to Law School

So I am reading Lowering the Bar's post on the request for a TRO by Philip J. Berg. In case you have not heard of this little insanity, Mr. Berg, a Hillary Clinton supporter, is seeking a TRO to block Barack Obama from running for president because, Mr. Berg alleges, he is not a "natural born citizen" of the United States.

After describing the attempt, Lowering the Bar comments on the phrase "natural born citizen", referring to previous candidates who had their own problems, or at least questions, with meeting this qualification. But while reading this, I thought to myself, there could be problems down the road for some future candidates. I mean, what if a candidate was conceived through artificial insemination, i.e. in vitro? That would seem to call into question the whole natural thing. And then I wondered, does giving birth through cesearian section mean that they were not a naturally born citizen?

I wonder if Justices Scalia and Alito would stick to their guns then or if they would look to outside sources then?

Dancing With The Stars Just Announced Their Line-Up

And here it is:

Kim Kardashian, reality TV star, will be dancing with Mark Ballas.

Cloris Leachman, Oscar-winning actress, Corky Ballas (Mark Ballas' father)

Maurice Greene, Olympic sprinter, will have the enviable task of being partnered with two-time winner Cheryl Burke.

Lance Bass, former N' Sync star, will dance with Lacey Schwimmer (who is making her first appearance on Dancing with The Stars. She is the 2006 U.S. Youth Latin Champ and 2007 World Swing Dance Champ).

Rocco DiSpirito, TV chef, will be Karina Smirnoff's cross to bear... er I mean partner... this season.

Warren Sapp, NFL star, will be partnered with Kym Johnson.

Misty May-Treanor, two time gold medal winning Olympic beach volleyballer, will be Maksim Chmerkovskiy's partner/victim.

Toni Braxton, Grammy award-winning R&B star, will be partnered with Alec Mazo.

Cody Linley, that cute kid from "Hannah Montana" show (otherwise known as the Disney representative on the show), will be dancing with the other two-time winner Julianne Hough.

Ted McGinley, veteran actor, will be dancing with another newcommer to the show, Inna Brayer.

Brooke Burke, actress/TV personality, will partner up with Derek Hough.

Jeffrey Ross, celebrity roaster and comedian, will be the burden that Edyta Sliwinska must bear this season.

Susan Lucci, "All My Children" star, will be partnered with cougar-magnet Tony Dovolani.

Looking at this list... I can't really see an early favorite outside of Lance Bass, and that is based on how well Joey Fatone did on the show a few seasons back. The down side is that its been a while since the last album... not to mention that the girls who idolized him as teens will probably not be there for him like they were for Joey. The boys on the other hand...

Another favorite would have to be Warren Sapp based on the Jerry Rice and Emmit Smith finishes (as long as he doesn't go the "Clyde the Glide" route). At first glance, it looks like Karina Smirnoff is still draying the short ends of the stick, although Edyta would seem to be close behind in that department.

As far as my sleeper pick... at first glance (and without seeing how any of this breaks down), I have to go with Susan Lucci. Big fan base. Good partner in Tony Dovolani. If she picks up enough, and given Tony's track record with the partner's he's had in the past, she could win it. I'm curious though to see what Mysti May-Treanor can do.

But the one that has me scared is the 82-year old Cloris Leachman. I hope Bergeron hasn't forgotten the number for the paramedics.

Wednesday, August 20, 2008

Finally A Bit Of Sanity

Some people who have read this blog might know I normally that I really don't like intellectual property laws (short version I think they are protected vested interests rather than helping innovation). With the RIAA suits against down-loaders (real and imagined), and the extension of the copyright act (essentially to protect Disney properties), it was all making me wonder if I was going to get sued at some point for quoting a movie line.

However, a Federal judge in San Jose gave me a little hope that maybe there might be some sanity in the system. U.S. District Judge Jeremy Fogel, issued an order today that stated that prior to sending a take-down letter, a copyright holder must first determine whether the use of the work constitutes "fair use".

So what does this mean? In 1998, Congress passed the Digital Millenium Copyright Act. The basic purpose of the act was to prevent piracy. The unintended consequence has the assault on fair use. When a copyright holder finds out that their work may be used in an infringing matter on the internet, they have the ability to issue a takedown order. What this means is that anytime a copyright holder notices that someone is using any part of their work, they could send a take down order.

Which is what happened in the case before Judge Fogel.

The case started when Stephanie Lenz made a video of her 13-month old son rocking out to Prince's song "Let's Go Crazy". She put it up on YouTube. Universal Music Corp., which holds the rights to song, issued a take down order. Now, the entirety of the song that was used came to 29 seconds. YouTube, complying with the law, took it down. However, they restored it when Ms. Lenz stood up to Universal and responded and had YouTube restore the video based on the "fair use" doctrine.

However Ms. Lenz, fortunately, was not one to take Universal's action lying down. She took the offensive and filed a lawsuit against the corporation in the U.S. District Court for the Northern District of California. In her suit, she seeks declaratory and injunctive relief (meaning she is seeking a declaration of her rights, not seeking monetary damages).

Universal has taken the position that a copyright holder has no duty to consider whether the use if protected by "fair use". Essentially, any time someone uses any of their "intellectual property", they can initiate proceedings against them without first considering whether the use is legal. Or to put it simply: sue first and let the courts sort it out.

Judge Fogel denied this theory. In his order denying Universal's motion to dismiss, he wrote,

[F]air use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright.
[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.
As the EFF noted, essentially the court held that copyright holders "ignore fair use at your peril!" The case continues, but the order is a first.

Hopefully it won't be the last.

Friday, August 15, 2008

Just Like Old Times (or Scary Times (Part II)

To think that I used to miss the Cold War.

Well it appears that a cease-fire has been negotiated in Georgia. Again. Let's see if the Russians respect it this time.

For an interesting article about what has been going on, I suggest reading Steve Levine's articles over at The Oil and The Glory.

As it appears right now, Russia will be retaining control of South Ossetia and Abkhazia. Officially Russia will only be there as "peacekeepers". However, what will more likely happen is that in a year or so, I anticipate that there will be a Russian-sponsored referendum where the people of South Ossetia will "vote" to be annexed by the Russian Federation.

Just as the Georgian situation starts to, hopefully, calm down, a new situation is on the rise. As some people may know, for months, the Bush Administration has been seeking partners in Europe to act as location sites for a missile defense system. Among those that have been targeted are nations in Eastern Europe including Poland and the Czech Republic. Today, it was announced that Poland and the U.S. have reached an agreement on the missile defense program.

Russia reacted predictably. General Anatoly Nogovitsyn, the deputy commander of the Russian Air Force and a deputy of the Chief of Staff, stated, when asked about the agreement, "Poland, by deploying (the system) is exposing itself to a strike — 100 percent[.]" He also quoted Russian doctrine which permits the use of nuclear weapons "against the allies of countries having nuclear weapons if they in some way help them."

Aside from the fact that Russia has shown that its true colors are no different from those of Imperial Russia or Soviet Russia, it is interesting that it has taken this long for it to do so. Looking at what Putin has been doing to Russia since he took over in 1999, he has been trying to restore the old luster to Russia.

Now what is interesting is the timing of Putin's actions. From my less trained eye, the timing of the Georgian invasion seems to have been delayed. Judging from reports of what happened in Georgia, the Russian response to the situation appears to have been planned and not improvised. If it was planned, why did they wait so long? If this is the first step in Russia attempting to bully its way into recreating a bipolar world, why did they wait so long.

Start from the position that U.S. is only world superpower. As such, the U.S. is the preeminent threat to any country which seeks to establish itself as a hegemon in a region, continent, or hemisphere. Simply put, the U.S. has the ability diplomatically, economically, and militarily to project its power to any corner of the world. When bullets start to fly, as they have in Georgia, or are threatened, as is the case of Poland, then the most concrete form of U.S. intervention is the military.

The threat of a carrier battle group being dispatched to a region, of USAF aircraft being dispatched to create a no-fly zone, or of a U.S. Army Division being dispatched, causes many countries to pause before embarking on a military option. However, the threat of U.S. intervention is diminished if we are already engaged in a large campaign elsewhere which requires us to commit large quantity of our resources.

Which has been the case for the past five years. For five years, the bulk of the U.S. Army and USMC have been rotating through either Iraq or Afghanistan. This has left the bulk of U.S. deterrence to the U.S. Navy, USMC MEU units (when they aren't needed in either Iraq or Afghanistan and Air Force. In many cases, this has been enough. However, Russia has a large army, with an air force which boasts approximately 850 modern combat aircraft. They also have a sizeable nuclear arsenal.

Had Russia rattled its saber against Poland and attacked Georgia even a year ago, this would have left the U.S. in a position where it could do almost nothing concrete. A year ago, the U.S. was in the midst of the Surge in Iraq. Troops were committed there and withdrawing them , or even threatening to, would have been incredibly difficult. Had Russia, or any other nation which aspires to the position of superpower (i.e. China) or regional superpower (i.e. Iran), made their move then, the U.S. would not have been in a position to easily act to counter them.

However, times are changing. No matter who becomes president in November, the reality of Iraq has changed because of the events that occurred during the Surge. The Iraqis are increasingly eager to provide for their own security and to see all or the majority of the U.S. and Coalition forces in the region withdrawn. Although Afghanistan will continue to be a work a progress over the next few years, it is not Iraq. Large conventional forces that are deployed there do not pay the same dividends as they would in other areas.

Essentially, it's almost as if the Russians have begun flexing their overt muscles too late. In some areas, it has been suggested that Putin feels that the U.S. cannot do without his influence over events in Iran. Perhaps, but if we do decide to forgo Russian help there, it could lead to failure which will only cause Russia more trouble as it tries to bring the Central Asian republics back under its influence.

That being said, the Georgian operation could have been spurred by Putin wanting to accomplish his objective before the U.S. is in a more balanced position to meet overt threats to its allies. Therefore, could we be in a sitaution where for the next year to two years, Russia will be pressing its agenda (i.e. bringing the Central Asian republics back under its hegemony, as well as seeking to keep more of the former Warsaw Pact nations from becoming enmeshed in NATO/U.S. security guarrantees) before the U.S. can do more than just offer unsupported diplomatic notes and presidential proclamations to support its allies?

One thing seems clear: the bear is back in the woods. It would be prudent to be ready to confront this bear, or any other that is lurking there.

Monday, August 11, 2008

Scary Times

I wish I could have spent the last few days just watching the Olympics and cheering on Team USA while I met the cutest little girl ever. Instead, I was watching the Olympics, meeting my niece, and trying to find as much as possible about what is going in Georgia.

I am not talking about the state either.

Georgia is a nation in what is variously known as the Near East or Central Asia. Although the territory has existed for centuries, it has been controlled by Imperial and then Soviet Russia for almost two centuries when it regained its independence in 1991.

Almost from the beginning, the newly independent state had two problems. Due, in part to Soviet control, there were significant minorities of non-Georgians in two regions: South Ossetia and Abkhazia. The people living in South Ossetia are Ossetians, essentially descendants of a Sarmatian tribe. Georgians are, well, Georgians. In both cases, most are Orthodox Christians (differing sects from what I can read) and both have Muslim minorities.

The Georgians have always viewed the territory that is known as South Ossetia as part of Georgia. And to date, no member of the United Nations has recognized South Ossetia as an independent nation.

While there is no official recognition, Russia has maintained a "peacekeeping force" in South Ossetia, and Abkhazia, since the troubles there began over a decade ago. Although there is a claim that there is a de facto state of South Ossetia, this undercut by the fact that Georgia has, in fact, maintained government control over a large portion of the territory which South Ossetia claims.

Now, as often happens when "peacekeeping forces" are dispatched to a region, there has been a constant low intensity conflict going on in the region (translation: both sides shoot at each other on occasion). Although generally it was peaceful, things began to intensify in 2004 as the central government in Georgia began to solidify its control over the region. Even though the Russians were supposed to be neutral, the Georgians claimed to have captured Russian spies, in 2006, who were engaged in espionage against Georgia in support of the South Ossetians.

It is important to remember something else Blogger: Wandering Bell - Create Poste. Prior to 2003, Russia liked the way things were in that part of Central Asia. The Georgian President was Eduard Shevardnadze. It was corrupt. It was stagnant. It was not going to pose a threat to a Russian state which was still trying to pull itself back together following the end of the Soviet Union.

Then in November 2003, there was an election. And Shevardnadze tried to rig it. And failed. Demonstrations occurred throughout the month of November, culminating in the non-violent take over of the capital building by protesters with roses in their hands (hence the name the "Rose Revolution").

In the place of Shevardnadze, following the election was Mikheil Saakashvili. While democratically elected, he is no saint, not that anyone should expect to find one in power in virtually any government. However, he does appear to be committed to democracy and ties with the West. To that end, his government has been working towards membership in NATO.

And that is what Russia fears.

First, NATO is still viewed as the enemy (even if they don't use that word). NATO was the organization by which the U.S. brought down the Soviet Union, and in the process humbled Russia. Second, the Caucus region, of which Georgia is a part, has been viewed as a Russian preserve (much like we in the U.S. view the Carribean, Central and South America). The concept of NATO bases (meaning U.S. bases) there on a permanent basis must be terrifying.

And did I forget to mention oil is involved as well? Although Georgia does not have oil reserves, there is the Baku-Tbilisi-Ceyhan (BTC) pipeline running through the country which carry natural gas and crude oil from Azerbaijan. For years, the West has been trying to keep the pipeline free of Russian control. Russian control would give them even more control over the world's oil reserves than it already has. As it stands right now, Russia produces almost as much oil as Saudi Arabia.

Control of the pipeline would add to Russia's petrochemical wealth. It would also give it another hook into Azerbaijan. At this time, the pipeline remains in Georgian hands, but that could change at any time if the fighting continues.

Georgia has firmly placed itself in the camp of the West in general and the U.S. in particular. Georgia's government has welcomed the idea of possibly becoming part of the missile defense shield program. The Deputy Chairman of the Defense and Security Committee, Nikoloz Rurua, stated, "In my view, the closer and more integrated Georgia is to Western defense systems, the better off our country will be." Predictably, the Russian response was not nearly so enthusiastic.

Which brings us back to what started on Friday. In the days leading up to August 8, there was an upswing in the violence. Both sides were accusing the other of initiating it. However, as the violence started to escalate, the Russian army began moving troops into position to enter the conflict. What happened is confused, with both sides claiming that villages were attacked indiscriminately.

What is certain is that on August 8, 2008, the Georgian military launched an assault on the separatist capital of Tskhinvali, almost surrounding and controlling it for a time. Russia then responded. According to the Russian version, Georgian troops were engaged in ethnic cleansing. According to the Georgians, the Russians are engaged in agresssion against Georgia, seeking to topple the nation's government.

So far, I have not been able to find any evidence of ethnic cleansing. Furthermore, Russian troops today have captured the city of Gori. Gori, aside from being the birthplace of Joseph Stalin, is well outside the dispute territory and is located in Georgia proper.

Russia is clearly using Georgia as an object lesson. First, it showing that the Russian Bear is back and ready to fight beyond its borders (i.e. Chechnya). Second, it is trying to show those countries in the Near East/Central Asia the consequences for siding with the U.S.

Failure to confront the Russians effectively on this will damage the United States' credibility. Bush has made it clear that he is working to help Georgian aspirations in NATO. Georgia has been a contributor to operations in Iraq, committing approximately 2,000 troops to combat operations there. American forces have been working to help the Georgian military modernized and adopt NATO style doctrine.

Unfortunately, because of our commitments around the world, it seems that Georgia will get nothing from the U.S. The U.S. military is currently deployed in Iraq, Afghanistan, the former Yugoslavia, and South Korea among other places. It is not easily accessible by the sea (only accessible to the U.S if it were able to transit the Dardanelles into the Black Sea).

Although it seems like we should do something, our leadership, in the form of the Bush Administration, seems content to offer up the language of support without actually doing anything to show tangible support.

Anyone else out there feel like they are watching a repeat of the Sudetenland in 1938? Or for the nightmare scenario, Serbia 1914? Am I overreacting? Possibly. But then again, the Russian Bear, historically, rarely moves when it doesn't intend to stay.

Will Someone Please Tell Me What Party Our President Is In?

I mean really. I understand the whole hatred of lawyers. You couldn't get into law school, only made it through undergrad because his father was who he was. Managed to avoid not being cashiered from the Air National Guard... because of who his father is. I get all that.

But can someone please explain this to me.

Now, I have a left lean when it comes to some things, so perhaps I am missing something. But as I understand it, Republicans are supposed to champion small government. That way, the freedom of the people are maximized. To that end, governmental bureaucracy is most bad and should only exist when it cannot be avoided.

Let me know when I am wrong about the basics. I really want to understand this.

So how does that philosophy, which I am told is at the heart of the Republican party, produce President Bush's latest policy: ending the protections found in the Endangered Species Act. Agree with the act, disagree with the act, thats not the issue. The issue is the way in which the Bush Administration seeks to achieve their end: by strengthening the bureaucracy. Apparently the plan is to use a loophole in the act to have the various agencies pass regulations.

The regulations will prevent agencies from considering whether projects are contributing to greenhouse gases and the effect of global warming on species. Sounds a little on the innocuous side right? Global warming is still being debated and maybe it is and maybe it is not junk science. However, under the current regulations, the various departments go run their assessments by Fish and Wildlife Service or the National Marine Fisheries Service.

Call me crazy, but based on their names ("
Fish and Wildlife Service" and "National Marine Fisheries Service"), they seem to be two agencies which would seem to know something about the environment.

Under the new regulations, the various departments will no longer need to do this. because they Instead, apparently the various departments and agencies have developed a certain amount of expertise in evaluating the environmental impact of projects on the environment. While I trust the Department of Transportation to tell me if a planned project will be safe transport wise, how many of the people there spend their time actually investigating the effect of their projects on the environment? Or say the Department of Energy?

Then again, I guess its easier to get projects approved when science is taken out of the assessment all together.

But getting back to my point. The Bush Administration is not doing this through a law. Instead, they are doing this through a regulation. A regulation made by a faceless bureaucrat. A bureaucrat who will not face the voters. A bureaucrat who, in many cases, received his position because he is a party loyalist, not because he is qualified for the position.

If the Democrats had anyone in congress worth their salt, this would not be such a problem. It would mean a vote to change the law and then override the president's veto and science would be kept in the equation when making decisions regarding the environment. However, since Democrats in congress are all talk and no hat, I doubt that they will do anything of the sort.

As I was asking earlier, is this the action of a man committed to having government closer to the people, or closer to the Oval Office?